county of Surrey, which was let by the plaintiff to the defendant for the term of three years, from the 29th of September, 1879, which term has expired [or, as the tenant from year to year from the 29th September, 1875, which said tenancy was or any part thereof are held, or for any wrong or injury done to the premises claimed." (See Order XVIII. r. 2.) This applies to counterclaims. (Compton v. Preston, 21 Ch. Div. 138.) The word contract, though usually applied to simple contracts, is no doubt used here in its strictly legal sense, and would include covenants. Formerly it was necessary for a claimant in ejectment to show a legal title. This has been changed by the 24th section of the Judicature Act of 1873, which enables equitable owners to sue in any division. And by sect. 25 it is expressly provided that a mortgagor entitled to the possession of land may sue for the recovery thereof in his own name, if the mortgagee have not given notice of his intention to enter into possession or receipt of the rents and profits thereof. A person having a merely equitable title may now sue for the recovery of may be pleaded. On the other hand, inasmuch as there were formerly no pleadings in the action of ejectment, it was impossible for a defendant to avail himself land. of the provisions of the Common Law Procedure Act, 1854, allowing Equitable equitable defences at law. This is altered by the Judicature Acts, under defences which pleadings have been introduced into it, and also by the provision of the Judicature Act, 1873 (sect. 24, sub-sect. 2), that equitable defences may be pleaded as in a Court of Equity before the passing of the Act. Formerly, the corresponding action of ejectment could only have been brought in the county within which the premises were situate, unless, under the Common Law Procedure Act, 1852, the Court or a judge ordered it to be tried elsewhere. Now, however, that local venues have been abolished by the Judicature Acts (see Order XXXVI. r. 1), it is clear that the action may be tried wherever the plaintiff proposes to try it, unless the Court orders it to be tried elsewhere; and if no county or place is named, it is to be tried in Middlesex. The general law, however, applicable to such actions is not altered, and it is therefore necessary to give a summary of it. One or other of the following persons is generally the plaintiff in an action for the recovery of land, namely, landlords, heirs-at-law, devisees, mortgagees, executors and administrators, trustees of bankrupts, and parsons. Landlords.]-In actions for recovery of land brought by landlords against tenants they are in general not required to prove their own title, but merely the demise and its expiration, and tenants cannot in general dispute the lessor's title or that of his assignee. (Cuthbertson v. Irving, 29 L. J. Ex. 485, Ex. Ch.) The assignee or sub-tenant of the lessee is equally estopped. (London & N. W. Rail. Co. v. West, L. R. 2 C. P. 553.) This doctrine of estoppel applies in the case of encroachments made by a tenant on land adjoining belonging to a stranger, and then held by the tenant as part and parcel of the demised premises. (Lisburn, Earl of, v. Davies, L. R. 1 C. P. 259. See also Whitmore v. Humphries, L. R. 1 C. P. 1.) But if a defect of the lessor's title appears in the lease, the tenant is not estopped from showing the defect. (Saunders v. Merryweather, 35 L. J. Ex. 115.) The action Landlord not bound to prove his title as against a tenant. Proof of tenancy, and termination thereof.]-Tenancy at will arises What is a where a person has been let into possession pending a treaty for a pur- tenancy at chase or lease (Right v. Beard, 13 East, 210), or under a void or imper- will. fect lease or conveyance, or where having been tenant for a term which has expired, he continues in possession negotiating for a new one. this case the tenancy is determined by either a formal demand of pos In H H How it arises and duly determined by notice to quit, expiring on the 29th of September, 1881]. The plaintiff claims possession, and £50 mesne profits. session or by any act inconsistent with a tenancy at will, such as granting a lease to another to commence at once, and giving him possession how ended. (Wallis v. Delmar, 29 L. J. Ex. 276), or an entry by the landlord and an exercise of ownership by him. (Turner v. Bennett, 9 M. & W. 643.) A yearly tenancy, how created and how A tenancy from year to year is shown, in the absence of other evidence. by payment and receipt of yearly rent. If a person having a lease void by statute, or an agreement for a lease, enter into possession and pays rent at so much a year, this makes him a tenant from year to year on such terins of the void lease or of the agreement as are not inconsistent terminated. with such a holding. (See notes to Doe d. Rigge v. Bell, 2 Sm. L. Cas. 7th ed. 96.) The same presumption holds where a corporation is either landlord or tenant, and the lease is void as not being by deed. (Eccles. Com. v. Merral, L. R. 4 Ex. 162.) If a tenant holds over after the determination of his term, and pays rent, the presumption is that he holds from year to year, even though the rent is increased by agreement. (Hyatt v. Griffiths. 11 Q. B. 505.) This form of tenancy is terminated by six months' notice. to be given six clear months before the termination of any whole year from its commencement. Thus, if it commence on the 25th December, 1870, notice to terminate it at the end of the first year must be given six months before 25th of December, 1871, and so on. So that it must continue one year at least, and a number of whole years afterwards. But as to notice to quit agricultural holdings, see the Agricultural Holdings Act, 1883. As to what constitutes a good notice to quit, see Woodfall's Landlord and Tenant, 11th ed. 300-323. How tenancies for years created. Where landlord proceeds at com. mon law, strict Longer tenancies are generally created by lease or agreement. Leases for over three years must be by deed under the joint effect of the Statute of Frauds and the 8 & 9 Vict. c. 106. For full information as to the creation, &c., of tenancies, see Woodfall's Landlord and Tenant, 11th ed. 116. Tenancies under leases or agreements are terminated by effluxion of time, notice in certain cases, and forfeiture for non-payment of rent, or by breach of covenant or otherwise. In cases of forfeiture, the forfeiture should, in the case of an assignee of the reversion suing, have accrued after the assignment, as the right of entry, unless clearly referred to, does not pass thereby. (Hunt v. Bishop, 22 L. J. Ex. 337; and see Hunt v. Remnant, 23 L. J. Ex. 135, Ex. Ch.) Such a right, however, passes to the devisee of the reversion under 1 Vict. c. 26, s. 3, and therefore the same doctrine would not hold in his case. If the landlord proceeds under the common law as opposed to the statutory remedy mentioned in the next paragraph, he must prove (but the statement of claim need not show) that all the ceremonies of the common law have been strictly complied with, as the demand by the landlord or his agent of the precise rent payable to save a forfeiture on the exact day on which it became due, and payable at a proper place of compliance payment, and at a convenient hour before and at sunset. (R. S. C. with all Ord. XIX. r. 14; 1 Wms. Saund. 278, et seq. (16); and see Barry v. formalities Glover, 10 Ir. C. L. R. 113, C. P.) Such formalities may, however, be requisite. dispensed with by express stipulation. (Phillips v. Bridge, L. R. 9 C. P. 48.) Statutory remedy given to landlords to recover Under the Common Law Procedure Act, 1852, s. 210, if half a year's rent is in arrear, and the landlord has a right by law to re-enter for non-payment, he may, without any formal demand or re-entry, serve his writ (the manner is prescribed by the section), and if it appear in the case of judgment by default, by affidavit or on the trial, that six Heir-at-law against Stranger. 1. The plaintiff is entitled to the possession of Blackacre, in the parish of county of [or, of No. 2, Bridge Street, Bristol], in the months' rent was due before service, and that no sufficient distress was possession then to be found on the premises, and that the lessor had power to enter, of their then he will be entitled to judgment and execution as if the rent had property. been formally demanded, and the landlord had re-entered. Proceedings under this section may, however, be stopped by the tenant tendering or paying into Court the rent and costs. (See sect. 212.) It frequently becomes an important question whether a landlord does not by his conduct waive a forfeiture. There have been numerous decisions on this question, for which the reader is referred to Woodfall's Landlord and Tenant, 11th ed. 294. Taking proceedings in ejectment amounts to a final election by the lessor to avail himself of the forfeiture. Hence the receipt of rent that would have accrued subsequent to the forfeiture would not be a waiver (Doe d. Morecraft v. Meux, 1 C. & P. 346) nor a distress for such rent (Grimwood v. Moss, L. R. 7 C. P. 360); nor the delivery of particulars of breaches complaining of non-payment of rent, together with other breaches. (Toleman v. Portbury, L. R. 6 Q. B. 245; aff. Ex. Ch. L. R. 7 Q. B. 344.) Under s. 14 of the Conveyancing and Law of Property Act, 1881, relief against forfeiture of leases for breach of covenant is freely given. For the conditions precedent for any action of ejectment based on the forfeiture see the same section. Suits by heirs-at-law.]-When the plaintiff in an action for the recovery of land is an heir-at-law, he must aver and be prepared to prove his descent through lawful marriage from the purchaser (as defined by 3 & 4 Wm. 4, c. 106, s. 2), and that all intermediate heirs between himself and the ancestor under whom he claims are dead without issue. In such suits questions of births, marriages, deaths, and identity constantly come into controversy. It is not conceived to be within the scope of this work to dwell on these subjects, and in any suit of this kind recourse must be had to the several valuable works in which they will be found discussed. Suits by devisees.]-A devisee, in order to establish his claim, must prove 1. That the testator was entitled in fec. What amounts to a waiver of a right of re-entry. Essential averments where heirat-law is plaintiff. 2. The regular execution of the will, or in certain cases the grant of Where probate under 20 & 21 Vict. c. 77, s. 61. 3. The death of the testator; and devisee in fee is 4. The determination of the estates (if any) limited prior to the limi- plaintiff. tation in his favour. In the case of copyholds- 1. The seisin of the testator, of which his admittance and actual possession would be the best evidence. 2. The surrender by him to the use of his will in the case of testator's dying before the 12th of July, 1815. But it is unnecessary in the case of persons dying after that date (55 Geo. 3, c. 192). 3. The will itself, of which probate under 23 & 21 Vict. c. 77, will be sufficient evidence. Where devisee of copyholds is plaintiff. 4. The devisee's own admittance or right to admittance. In the case of devise of leaseholds, the plaintiff must prove1. The title of the devisor, unless the defendant is estopped from dis- devisee of puting it. (See ante, p. 465.) Where leaseholds Where executors, &c., are plaintiffs. Common defences to actions by devisees. Mortgagee suing to recover the mortgaged premises. Where execution creditor is plaintiff. 2. On and before the 1st of January, 1882, A. B. was seised in fee and in possession of the premises. 3. On the 1st of February, 1882, the said A. B. died so seised and intestate, whereupon: 2. The probate of the will. 3. The assent of the executor to the bequest or devise. In the case of executors and administrators, the plaintiff must show1. The leasehold title of his testator. 2. The testator's death. 3. The probate or grant of administration. The term vests in an executor at the death of the testator, and the executor may therefore recover on a claim dated between the time of the testator's death and the probate. Com. Dig. Adm. (B. 10). Administration, when granted, relates back for some purposes to the intestate's death. In Ireland the doctrine of relation was established for the purpose of ejectment. (Patten v. Patten, Alc. & Nap. 493.) By 3 & 4 Wm. 4, c. 27, administration is made to relate back to death for the purposes of the Act. (See also title Executors and Administrators.) The following are the usual defences to suits for the recovery of land by devisees, viz. :- 1. A disclaimer by the devisee. 2. Fraud and undue influence exercised over the testator. See 4. Incapacity from idiocy, insanity, or such mental aberration as would deprive the testator of the testamentary capacity. judgment of Sir J. P. Wilde in Smith v. Tebbitt, L. R. 1 Prob. & Div. 398. 5. Revocation of will by cancelling, burning, tearing, or destroying, animo revocandi. 6. Revocation by subsequent will, making a disposition of the property to another person. Suits for recovery of possession by mortgagees.]—Where the mortgagor is in possession after default, and the action is brought against him, the mortgagee has only to prove the execution of the mortgage, a demand of possession being in such case unnecessary. (Doe d. Roby v. Maisey, 8 B. & C. 767; and see note to Keech v. Hall, 1 Sm. L. Cas. 7th ed. 579.) If a third person is in possession by a title prior to the mortgage, then the mortgagee is in the position of an assignee of the reversion, and must show a title to oust him; thus in the case of a tenant from year to year it must be shown that he received a regular notice to quit. A railway company exercising a power to mortgage the undertaking with all tolls, does not enable a mortgagee under that power to recover the railway. (Myat v. St. Helen's Ry. Co., 2 Q. B. 364; and see Gardner v. Lond., Chat.. & Dover Ry. Co., L. R. 2 Ch. 201, 385.) A mortgagee of turnpike tolls cannot recover in ejectment, unless the power to mortgage includes land such as toll-houses and gates. (Mytton v Gilbert, 2 T. R. 169.) As to suits for recovery of such property under 3 Geo. 4, c. 126, see Thompson v. Lediart, 4 B. & A. 137; Watton v. Penfold, 3 Q. B. 757. Suit by execution creditor for recovery of land.]-The plaintiff must prove the judgment, the elegit, and the inquisition or return thereon. (B. N. P. 104.) If a third person be in possession of the land extended, it is sufficient on the part of the plaintiff to prove a prima facie title in the debtor, and it then lies on the defendant to show a title anterior to the delivery in execution. (Evans v. Owen, 2 C. & J. 71.) But by the 4. The estate descended to the plaintiff, his eldest son and heir-at-law. 5. After the death of the said A. B. the defendant wrongfully took possession of the premises. 27 & 28 Vict. c. 112, s. 1, since the 29th of July, 1864, "no judgment shall affect any land until such land shall be actually delivered in execution." Suits by trustees of bankrupts.]-See Bankruptcy. Suits by parsons.1-If the plaintiff does not claim in his character of Suits by landlord, he must deduce in his statement of claim his title, by stating parsons. that he was duly presented, instituted, and inducted, unless the defendant is estopped from disputing his title; and he need not show the title of his patron. (Heath v. Prynn, 1 Vent. 14.) Presentation by a corporation aggregate must be under the common seal. (Gibson's Codex, 794.) The parson cannot now eject a tenant at rack-rent under his predecessor, as by 14 & 15 Vict. c. 25, s. 1, such a tenant is entitled to hold until the expiration of the current year of the tenancy, and then. quit without notice. Semble, a sentence of suspension, while in force, will prevent a parson maintaining this action. (Morris v. Ogden, L. R. 4 C. P. 687, 702, 703.) A defendant in such circumstances should, in his statement of defence, allege the suspension. In an action for the recovery of land of which the plaintiff has never Plaintiff's been in possession, the statement of claim must allege the nature of the title must deeds and documents upon which he relies in deducing his title from the be set out person under whom he claims, and a general statement that by assurances, in the wills, documents, and Crown grants in the possession of the defendants claim. without further describing them, the plaintiff is entitled to the land, is embarrassing and liable to be struck out accordingly (Philipps v. Philipps, 6 Q. B. D. 127). If the plaintiff has not got the necessary information, he should apply for discovery (Lyell v. Kennedy, 8 App. Cas. 217). No defendant in an action for the recovery of land, who is in posses- Defendant sion by himself or his tenant, need plead his title unless his defence need not depends upon an equitable estate or right, or he claims relief upon any plead his equitable ground against any right or title asserted by the plaintiff. title. Subject to that exception, it is sufficient for the defendant to plead that he is in possession (R. S. C. Ord. XXI. r. 21. Danford v. Mc Anulty, 8 App. Cas. 456). The person in possession is made defendant in an action for the recovery Tenant of land and not his landlord. It has therefore been enacted by the 15 & is made 16 Vict. c. 76, s. 209, that all tenants shall on pain of forfeiting three defendant. years' rent, give notice to their landlords of any writ for the recovery of the land delivered to them and coming within their knowledge. By 11 Geo. 2, c. 19, s. 13, a landlord (which includes the heir, remainderman, devisee in trust, mortgagee, and the like), may be made, with the leave of the Court, a defendant to the action. The procedure is regulated by R. S. C. 1883, Order XII. rr. 25-28, by which it is provided, any person not named as a defendant in a writ of summons for the recovery of land may by leave of the Court or judge appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant. Any person appearing to defend an action for the recovery of land as landlord, in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord. Where a person not named as defendant in any writ of summons for the recovery of land has obtained leave of the Court or a judge to appear and defend, he shall enter an appearance according to the foregoing Rules Rules of 1883 as to defendants in eject ment. |